Interference No. 103,586
Wachtel, 504 F.2d 1150, 1152, 191 USPQ 571, 573 (CCPA 1976). If the process is
carried out by the inventors, there must be corroborated evidence that all the limitations as
to materials, properties, steps and results required by the count were present in the work
performed. Land v. Regan, 342 F.2d 92, 94, 144 USPQ 661, 664 (CCPA 1965);
Vandenberg v. Reynolds, 268 F.2d 744, 747, 122 USPQ 381, 383 (CCPA 1959).
Barbacid’s Case for Priority (Issue 1)
Since the Barbacid application was copending with the Brown application,
Barbacid, as junior party, have the burden to establish priority of invention by a
preponderance of the evidence. Bosies v. Benedict, 27 F.3d 539, 541, 30 USPQ2d
1862, 1864 (Fed. Cir. 1994); Peeler v. Miller, 535 F.2d 647, 190 USPQ 117 (CCPA
5
1976) See also 37 C.F.R. § 1.657(b)[1995]. .
For an actual reduction to practice of the subject matter of the count, Barbacid rely
upon the activities of both Manne, a coinventor, and of Donald Roberts (Roberts), a
research associate at Squibb, who worked under the supervision of Manne.
We will focus on the work done by Roberts in March 1990, whose work was
performed on behalf of the inventors and was not challenged by Brown in their brief. In
fact, at final hearing, counsel for Brown agreed that it would appear that Brown had an
37 C.F.R. § 1.657(b), as now amended, states that: [I]n an interference involving5
copending applications or involving a patent and an application having an effective filing
date on or before the date the patent issued, a junior party shall have the burden of
establishing priority by a preponderance of the evidence.
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